UK Independent Reviewer of Terrorism’s Annual report 2009 offers alternative approach for stop and search powers

In his last report as Independent Reviewer of the Terrorism Act 2000, Lord Carlile made some comments as as to how the future reviewer might best discharge his/her role in the future. The report comes after the 2010 election on purpose:

I have done this in order to be able to reflect upon declared or likely changes of policy as a result of the change of government. In that context, although this is not a report on the control orders system, it may be helpful to say that nothing I have seen or heard during or following the election campaign has led me to change my repeatedly expressed views – that control orders are an unwelcome but appropriate means of addressing a small number of cases. No viable alternative has been suggested for this very small group of terrorism suspects.

On diplomatic assurances:

In my view more could be done to persuade home countries of the importance of ensuring that returnees are treated in accordance with ECHR standards; and to ensure that case-specific, credible, realistic and verifiable evidence to support return is placed before the Courts. It is not acceptable for large numbers of persons to remain in the UK when their presence is contrary to the national interest and national security. I believe that a more imaginative approach to these cases is required, probably based on a partnership between the Home Office, the Foreign and Commonwealth Office, and independent non-governmental agencies commanding the confidence of the other countries concerned.

On trials:

Plea agreements, and the obtaining from defendants of information useful in preventing and detecting terrorism, should be encouraged – in some cases by substantial discounts from sentences that otherwise would be served.

On the torture inquiry Carlile seems to supports the UK government view:

The new UK government has promised a judge-led inquiry into these matters. Presumably that inquiry will follow the completion of the police investigation and any ensuing prosecution: it would be unrealistic to have police and judicial inquiries running in tandem.

On stop and search powers

If there is a single issue that can be identified as giving rise to most assertions of excessive and disproportionate police action, it is the use of section 44. As I have reported repeatedly, difficult problems arise in connection with the utilisation of section 44 by police around the country. The inconsistency of approach among chief officers as to why, and if so when, section 44 should be available was less pronounced during 2009, but remains. The section, which permits stopping and searching for terrorism material without suspicion, rightly is perceived as a significant intrusion into personal liberties.

Although the UK government is seeking permission to appeal Gillan to the Grand Chamber of the ECtHR, preparations should be made for the potential failure of that appeal. I would go further. In my view the judgment already given has illustrated the excessive nature and use of section 44. Given the clearly expressed policies of the coalition partners prior to the 2010 General Election, I suggest that the time has arrived for the section to be repealed, and replaced by a more limited provision to deal with three broad sets of circumstances, These are:
(a) counter-terrorism operations such as searches, arrests and some surveillance situations;
(b) some iconic events where there is security services advice of heightened threat or risk;
(c) a closed (i.e. secret), regularly reviewed and unexaggerated list of true critical national infrastructure sites.

On the UK domestic listing:

I believe that there is general public acceptance that the proscription of organisations prepared to use or encourage terrorism is proportionate and necessary.

I would urge the new Government to pursue an evidence-based examination of currently proscribed organisations: the utility of proscription must always be balanced against the freedoms of speech and association.

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